Last November, a putative class action was filed in Solano County Superior Court by Maria Johnson, on behalf of herself and other similarly situated current and former employees of Lowe’s Home Centers, LLC, and as a proxy for the State of California.
She began working for Lowe’s in 2015 and worked California, until her employment as a delivery coordinator ended in October of 2020.
This class and representative action challenges alleged systemic employment practices resulting in violations of the California Labor Code against individuals who worked for Defendants. The Complaint addresses Defendants’ violations of Labor Code sections 201-202, 204,226,233, and 246, and seeks penalties, damages, and other relief pursuant to, among other provisions, Labor Code sections 203,210,218,218.5, 218.6, 248.5, and 2698 et seq., and the Unfair Competition Law, codified in the Business and Professions Code.
Maria Johnson alleges four causes of action; (1) Unpaid Sick Pay (including derivative penalties for such unpaid sick pay, including waiting time penalties); (2) Inaccurate Itemized Wage Statements; (3) Unfair or Unlawful Business Practices; and (4) Violations of the California Labor Code §§ 2698, et seq.
With respect to the first cause of action, plaintiffs allege that “As a matter of policy and practice, Defendants pay Plaintiff and the Sick Pay Class for sick time at the incorrect rate of pay. Defendants pay Plaintiff and the Sick Pay Class at the base hourly rate of pay, as opposed to the regular rate of pay, which would take into account all non-discretionary remuneration in addition to their base hourly wages, including for example incentives or bonuses, or the rate resulting from dividing the employees’ total wages, not including overtime premium pay, by the employees’ total hours worked in the full pay periods of the prior 90 days of employment, as required by Section 246. This results in underpayments of sick pay wages to Plaintiff and the Sick Pay Class.“
They support this claim by saying “The California Supreme Court has explained that “[c]ourts have recognized that ‘wages’ also include those benefits to which an employee is entitled as a part of his or her compensation, including money, room, board, clothing, vacation pay, and sick pay.” Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 109 4, 1103 (2007) ( emphasis added).”
According to Lowe’s data, there were approximately 18,799 full-time, non-exempt individuals employed by Lowe’s in California who were paid sick pay wages at any time during the period of November 23, 2017 to December 21, 2020.
On January 15, 2021 Lowe’s provided Notice that it had filed documents to remove the case to the United States District Court for the Eastern District of California. In this regard they allege “Removal of a class action is proper if: (1) there are at least 100 members in the putative class; (2) there is minimal diversity between the parties, such that at least one class member is a citizen of a state different from any defendant; and (3) the aggregate amount in controversy exceeds $5 million, exclusive of interest and costs.”
Lowe’s maintains that this action was improperly filed in state court because “Plaintiff agreed to binding individual arbitration of the claims she has asserted in this action. Lowe’s also intends to oppose class certification on multiple grounds, including that (a) Plaintiff must arbitrate her claims against Lowe’s individually pursuant to the binding and enforceable arbitration agreement and class action waiver executed by Plaintiff, and (b) class treatment is inappropriate under these circumstances in part because there are many material differences between the named Plaintiff and the putative class members Plaintiff seeks to represent, as well as amongst the putative class members.”
Lowe’s avers, for the purposes of meeting the jurisdictional requirements for removal only, that if Plaintiff were to prevail on every claim and allegation in her Complaint on behalf of the putative class, the requested monetary recovery would exceed $5 million.